Answer to whether COVID-19 pandemic suffices to the condition of force majeure will be very subjective as force majeure is not just a condition out of human control but it must also be a condition with a consequence and that being the inability to fulfill the contact, in other words: non fulfillment of the contract. Primarily, whether a condition amounts to force majeure or not depends upon how a force majeure has been defined in a contract, or if not in the general law of contract.
Generally, force majeure conditions in contracts cover global pandemic as COVID-19; as under usual circumstances, they are defined as natural disasters, epidemics, acts of god or conditions outside human control as such and they are usually inclusive definitions. But a condition will not be claimed as force majeure unless that condition actually affects the execution of the contract or a part of it. Such as, if the contract could be fulfilled despite the existence of the condition that might satisfy the definition of force majeure, it shall not be claimed under the same; that might just lead to unjust enrichment of a party. For example: if a content writer had a deadline to email contents while government announces lockdown owing to COVID-19, and though the definition of force majeure in their contract covers COVID-19 as a force majeure, the writer may not claim it as force majeure under the contract for non delivery of the contents on time; unless the delivery could not be made on time because he actually contracted COVID-19 or unless the condition in actual affected to the delivery.
Civil Code 2017 governs the general law of contract in Nepal and though it has not given a general definition for force majeure; it has provided one for lease agreements in a proviso to section 615(4). And because force majeure has not been defined elsewhere, conditions provided in the provison to section 615 might be referred to in general. It provides the following conditions to be considered as a force majeure event:
(a) A storm, earthquake, eruption of volcano,
(b) Excessive rain, flood, landslide, soil erosion, thunder-storm,
(c) Fire caused in any manner other than that caused by dishonesty, negligence or recklessness on the part of the lessee or his or her family member, employee, worker or third party,
(d) Act of terrorism, civil riot, civil war,
(e) Other natural calamities of similar nature beyond human control.So, to decide whether COVID-19 falls under a force majeure event; careful consideration of the events must be conducted objectively.
